IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

FAO NO.5189/2008

Date of Decision:27.4.2009.

Sunita and others

..........Appellants

Versus

Kishori Lal and another

..........Respondents

CORAM:

HON'BLE MR.JUSTICE JASWANT SINGH.

Present:

Mr. Arun Yadav,Advocate for the appellants.

JASWANT SINGH,J

Appellants-claimants are in appeal against the award dated 22.10.2008

passed by the learned Motor Accident Claims Tribunal,Rewari (for short the

Tribunal) whereby the claim petition filed by them, initially under Section 163 and

finally entertained by the learned Tribunal as one under Section 166 of the Motor

Vehicles Act,1988 (for short the Act), seeking compensation to the tune of Rs.10

lacs on account of death of Raj Pal in a motor vehicular accident that took place on

12.6.2002, has been dismissed.

It is averred that on 12.6.2002 deceased Raj Pal was riding the pillion

of motorcycle No.HR-36-C-4867(hereinafter referred to as the offending vehicle)

owned and driven by Kishori Lal respondent no.1. When they were crossing

National Highway at Saban Chowk, an Indica car came from the Jaipur side and

there was a collision between the said two vehicles as a result of which deceased Raj

Pal and Kishori Lal fell down. They were firstly rushed to Civil Hospital, Bawal and

then to Civil Hospital,Rewari, but unfortunately deceased Raj Pal breathed his last

while being taken to Civil Hospital Rewari. FIR No.47 dated 12.6.2002 was

FAO NO.5189/2008 2

registered at PS Bawal under Sections 279, 337,304-A IPC. With these averments

appellants-claimants filed a claim petition against the owner-cum-driver of the

offending vehicle as well as its Insurer.

The respondent no.1 (owner and driver of the offending vehicle) was

proceeded against ex parte. Respondent no.2-i.e. Insurer of the vehicle resisted the

claim on various counts. On the pleadings of the parties issues were framed. Parties

led evidence in support of their respective pleas. The learned Tribunal after hearing

both sides dismissed the claim petition. Hence the present appeal.

Heard learned counsel for the appellants and perused the record.

The claim petition was originally filed under Section 163 of the Act and

pleadings were made in accordance with the provisions of Section 163-A of the Act.

Thereafter an application was moved by the claimants to treat the petition as one

under Section 166 of the Act. Keeping in view the monthly income of the deceased

claimed to be Rs.6229.95 and words “rash and negligent” in para 24 of the petition,

counsel for the claimants-appellants was asked as to under which provision of the

Act the petition should be treated. Since counsel failed to exercise his option, the

learned Tribunal keeping in view the legal provisions that claim petition is not

maintainable under both the provisions i.e. 163-A and 166 of the Act, treated the

claim petition as one under Section 166 of the Act.

For succeeding in a claim petition under Section 166 of the Act, the

claimants were required to prove negligence on the part of the driver of the

offending vehicle (i.e. motorcycle on which the deceased was riding as a pillion

rider).

A perusal of the impugned award shows that in order to prove

negligence on the part of respondent no.1 (driver of the offending vehicle) claimants

examined one Mahender Singh PW3, who proved FIR Ex.P5, which was authored

FAO NO.5189/2008 3

by him. As per contents of the FIR, it was case of the Mahender Singh PW3 that

deceased Raj Pal (nephew of Mahender Singh) and Kishori Lal-respondent no.1

(driver of the offending vehicle) before taking turn towards Bawal at Saban Chowk

signalled by hand but the driver of the Indica car bearing registration no.PB